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Abstract
Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to the status of the regulator of the state.
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Introduction Rahmat Ali (1897-1951) is mentioned in the history textbooks circulating in Pakistan only briefly. His coining of the name for a separate Muslim polity, Pakistan, and the publication of the pamphlet Now or Never, which he wrote in 1933, are the reasons that Rahmat Ali found a marginal niche in the collective historical imagination of the Pakistani laity. In the Pakistan Studies books for undergraduate students, sponsored by the University Grants Commission, Rahmat Ali’s description begins and ends in one line: ‘Choudhary Rahmat Ali had started his struggle for a separate state for Muslims in 1933.' Why Rahmat Ali’s other works, comprising ten pamphlets of varying size and scope, are not mentioned in Pakistani national discourse is a pertinent question that has not yet been framed. Similarly, his thoughts are conspicuously barred from circulation in the media as well as in educational institutions. Despite a sizeable corpus of literature in Urdu that underscores Rahmat Ali’s role as a thinker and political visionary, including Khurshid Kamal Aziz’s adulatory biography, Ali has remained a peripheral figure in the annals of Pakistani political history. The lack of interest in Rahmat Ali exhibited in the Pakistani national narrative could be due to his disdain for Muhammad Ali Jinnah, obvious in his writings. Rahmat Ali derisively branded Jinnah ‘Quisling-i-Azam,' instead of Quaid-i-Azam (The Great Leader), his customary epithet in Pakistan. Similarly, his well-known repugnance for the idea of Pakistan as a nation state was explicitly articulated in a pamphlet The Greatest Betrayal, which he wrote after Pakistan’s creation in 1947. This evolution in Rahmat Ali’s political imagination will be the central focus of this chapter, in order to make sense of Rahmat Ali’s virtual banishment from Pakistan’s history, along with his thoughts and the history and evolution of the Pakistan National Movement that he founded in 1933. The Pakistan National Movement was later transformed to the All-Dinia Milli Movement in 1940. Thus Ali’s political vision went through various phases of evolution: starting with the Pak Plan in 1933, it was transformed into the concept of the Continent of Dinia, and eventually culminated in the Cultural Orbit of Pakasia. The sources employed for this study comprise the original writings of Choudhary Rahmat Ali, stocked as part of the Foster papers at the Centre of South Asian Studies, University of Cambridge.
Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
The courts are often a key site in the struggle for the protection and enforcement of constitutional rights and accountability. In this article, I draw attention to an important avenue for both the historical and contemporary study of comparative administrative law: the incorporation of the prerogative writs into written constitutions. I offer a global genealogy of the writs as a colonial common law transfer that took on a new life in written constitutions across former British colonies, particularly across South Asia, including India, Pakistan, Bangladesh, Sri Lanka and Myanmar, as well as parts of Africa, the Pacific and the Caribbean. I illustrate the history, development and variations of this model, transforming from the common law remedies of England to a constitutional means of protecting rights. Through the case of Myanmar, I demonstrate the history of transnational constitutional borrowing and innovation in former British colonies. The importance of the writs lies in their symbolic status as a constitutional remedy and, despite present limitations, comparative experience offers future scope for judicial activism in Myanmar.
Cambridge Core - Comparative Law - The Politico-Legal Dynamics of Judicial Review - by Theunis Roux
This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.
Part 1 The backdrop: insiders and outsiders the search for a new constituency rise to power. Part 2 The regime in power, 1971-7: restructuring institutions redirecting economic development - management by the PPP left economic decision-making without constraints, 1974-7. Part 3 The fall from power: preparing for elections in 1977 the 1977 elections. Part 4 The Bhutto legacy.
As the Indian subcontinent moved closer to 1947, the fateful year of independence from British rule, distinct features characteristic of the political economy of each of its regions came to the fore. In the provinces of British India, political structures had emerged by the mid-1940s which expressed the social authority and levels of organisation and mobilisation for political activity of the various interest groups of the region. One arena for their expression were the provincial legislatures, which had begun to function on a restricted basis towards the end of the nineteenth century. After the passing of the Government of India Act of 1935, these legislatures represented a much wider social base, comprising the enfranchised sections of the Indian population. Adult franchise was never granted during British rule. Generally, the rural and urban poor were excluded throughout from the right to vote. The better off, landowning sections of the peasantry were included in the electorate, as well as the upper social layers of rural landowners and urban bourgeoisie. Competing social or political groups, to the best of their abilities and resources, endeavoured to elect their nominees to represent their interests in the legislatures.
This project represents something of a high watermark in the study of law and courts in general and judicial review in particular. Not so very long ago nearly every student of the politics of law and courts concentrated on the constitutional decisions of the U.S. Supreme Court. The very preoccupation with constitutional judicial review has led, in recent years, to more study of lands beyond the United States as constitutional courts and constitutional judicial review, or something very like it, spread to other democratic regimes, particularly after World War II. What once appeared to be a piece of American exceptionalism came into play in most European, continental, democratic states; and in the European Union and the European Convention on Human Rights; in more and more English-speaking countries; and in some Asian democratic states. Overseas realities eventually forced scholars to go beyond their American preoccupations. At the same time, the very concerns with the politics of law and courts, or the judicial role in politics, that had so dramatically called our attention to the constitutional law of the U.S. Supreme Court and then to other constitutional law and courts eventually lead us to nonconstitutional courts of law, because it could hardly be denied that all sorts of American and foreign courts made significant public policy decisions in all sorts of cases involving all sorts of law.
What explains divergences in political liberalism among new nations that shared the same colonial heritage? This book assembles exciting original essays on former colonies of the British Empire in South Asia, Africa, and Southeast Asia that gained independence after World War II. The interdisciplinary country specialists reveal how inherent contradictions within British colonial rule were resolved after independence in contrasting liberal-legal, despotic, and volatile political orders. Through studies of the longue durée and particular events, this book presents a theory of political liberalism in the post-colony and develops rich hypotheses on the conditions under which the legal complex, civil society, and the state shape alternative postcolonial trajectories around political freedom. This provocative volume presents new perspectives for scholars and students of postcolonialism, political development, and the politics of the legal complex, as well as for policy makers and publics who struggle to construct and defend basic legal freedoms.
In 1984, James March and Johan Olsen published a landmark article, "The New Institutionalism: Organizational Factors in Political Life," which saw in political science "a resurgence of concern with institutions." March and Olsen did not cite any works focused on law, but they suggested the relevance of new institutionalist approaches to legal scholarship by arguing that "Constitutions, laws, contracts, and customary rules of politics...develop within the context of political institutions." They also stressed the significance of "normative structures" defining "duties, obligations, roles and rules," and how "consistency and inconsistency in beliefs affect...political meaning" and the creation of "social order." Subsequently, they endorsed jurisprudential views holding that judges, like other institutional actors, actively gave "meaning to the values they espouse" in politically consequential ways. This article discusses the emergence of historical institutionalism, historical institutionalism as a theoretical perspective, and the current state of future prospects for historical institutionalism and public law.
Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world's largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attention by providing a detailed examination of constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh. Identifying a common theme of volatile change, it develops the concept of 'unstable constitutionalism', studying the sources of instability alongside reactions and responses to it. By highlighting unique theoretical and practical questions in an underrepresented region, Unstable Constitutionalism constitutes an important step toward truly global constitutional scholarship.
How do a legal order and the rule of law develop in a war-torn state? Using his field research in Sudan, the author uncovers how colonial administrators, postcolonial governments and international aid agencies have used legal tools, practices and resources to promote stability and their own visions of the rule of law amid political violence and war in Sudan. Tracing the dramatic development of three forms of legal politics - colonial, authoritarian and humanitarian - this book contributes to a growing body of scholarship on law in authoritarian regimes and on human rights and legal empowerment programs in the Global South. Refuting the conventional wisdom of a legal vacuum in failed states, this book reveals how law matters deeply even in the most extreme cases of states still fighting for political stability.
Scholars have generally assumed that authoritarianism and rule of law are mutually incompatible. Convinced that free markets and rule of law must tip authoritarian societies in a liberal direction, nearly all studies of law and contemporary politics have neglected that improbable coupling: authoritarian rule of law. Through a focus on Singapore, this book presents an analysis of authoritarian legalism. It shows how prosperity, public discourse, and a rigorous observance of legal procedure have enabled a reconfigured rule of law such that liberal form encases illiberal content. Institutions and process at the bedrock of rule of law and liberal democracy become tools to constrain dissent while augmenting discretionary political power – even as the national and international legitimacy of the state is secured. With China seeing lessons to be learned in Singapore, as do any number of regimes looking to replicate Singapore's pairing of prosperity and social control, this book offers a valuable and original contribution to understanding the complexities of law, language, and legitimacy in our time.
A longitudinal case study of Chile that assesses competing hypotheses regarding judicial behavior in both democratic and undemocratic contexts, this book explores the relevance of regime-related factors, judges' personal policy preferences, social class, and legal philosophy, but argues that institutional features grounded in the ideal of –apoliticism— best explain the persistent failure of Chilean judges to take stands in defense of rights and rule of law principles, before, during, and after the authoritarian interlude. Dr. Hilbink offers comparative examples to support broader theoretical claims about when judges will be willing and able to assert their independence against abuses of public power.
The question of why some countries have democratic regimes and others do not is a significant issue in comparative politics. This book looks at India and Pakistan, two countries with clearly contrasting political regime histories, and presents an argument on why India is a democracy and Pakistan is not. Focusing on the specificities and the nuances of each state system, the author examines in detail the balance of authority and power between popular or elected politicians and the state apparatus through substantial historical analysis. India and Pakistan are both large, multi-religious and multi-lingual countries sharing a geographic and historical space that in 1947, when they became independent from British rule, gave them a virtually indistinguishable level of both extreme poverty and inequality. All of those factors militate against democracy, according to most theories, and in Pakistan democracy did indeed fail very quickly after Independence. It has only been restored as a facade for military-bureaucratic rule for brief periods since then. In comparison, after almost thirty years of democracy, India had a brush with authoritarian rule, in the 1975-76 Emergency, and some analysts were perversely reassured that the India exception had been erased. But instead, after a momentous election in 1977, democracy has become stronger over the last thirty years.
This book is a detailed case study of Nepal's post-1990 constitutional experience. It examines the complex relationship between law and politics, and emphasizes the role of cultural identity in making institutional choices relating to the framing and implementation of the Nepali Constitution. The volume also analyses the patterns of legal exclusion that resulted in the growing politicization of identity, the de-legitimization of the 1990 Constitution, and the current demand for state-restructuring based on ethnic federalism and group rights.
The author, tracing the evolution of Nepal from a constitutional monarchy to a republic, analyses the drafting of the 1990 Constitution, the impact of the Maoist insurgency (1996-2006) on demands for constitutional change, the relationship between conflict and demands for recognition, and the role of Nepal's Supreme Court in the articulation of identity politics.
Based on pathbreaking research, this volume would be immensely useful to scholars, teachers, and students of law, politics, and international relations.
The legal profession as it exists in India today had its beginnings in the first years of British rule. The Hindu pandits, Muslim muftis and Portuguese lawyers who served under earlier regimes had little effect upon the system of law and legal practice that developed under British administration. At first, the prestige of the legal profession was very low. From this low state and disrepute the profession developed into the most highly respected and influential one in Indian society. The most talented Indians were attracted to the study and practice of law. The profession dominated the public life of the country and played a prominent role in the national struggle for freedom. “There was no movement in any sphere of public activity—educational, cultural, or humanitarian—in which the lawyers were not in the forefront.” However, after independence the relative prestige and public influence of the profession declined.
This article examines the policy environment and implementation of President Zia's Islamic legal reforms in Pakistan during the past decade. It argues that such legal reforms have had only a minor impact on Pakistan's legal system either in regard to legal structures, or in regard to criminal law. The article further argues that the policy environment facing Pakistani decision makers helps to explain the slow pace of implementation.
The root causes of identity mobilization are related to the underlying characteristics of politics in a weak state and its susceptibility to the intrusion of outside forces into its body politic. Sectarianism in Pakistan demonstrates that the imperatives of politics in such a state combine with the interests of international actors to entrench identity cleavages in the political process. Instrumentalist and primordial explanations of identity mobilization are insufficient. The behavior of international and state actors, in the context of the structure of state-society relations, is also a causal factor.
The paper examines the reasons that India, Pakistan and Ceylon chose to become Dominions within the Commonwealth instead of becoming republics on independence as many expected. Each of these South Asian states had different motives that compelled them to take on a form of government more associated in areas where the British had settled in significant numbers. The ‘Tropical Dominions’ differed from the settler cases and tested this vague British concept. The British and South Asians had to compromise their wishes in order to satisfy their wants. India is characterised here as the ‘Expedient Dominion’, Pakistan the ‘Siege Dominion’ and Ceylon the ‘Imitation Dominion’. This paper focuses on the years immediately prior to independence to understand the various objectives of the South Asian elites that negotiated with the British for their sovereignty and how they varied from each other and from the Dominion ideal.